Navigation

Articles Posted inFirearms

Earlier today I was reading an article in the Lowell Sun about a “major” drug dealer arrested and charged with a multitude of drug and gun crimes. A suburban task force targeted a twenty-eight year old Groton man, Shane Conley, as dealing various controlled substances. Armed with a search warrant the police entered Conley’s home yesterday and found pills and marijuana. The total amount of drugs seized was insufficient to charge Conley with trafficking. Also found during the search was a sawed off .22 caliber rifle and some ammunition. Mr. Conley was charged with possession with intent to distribute Class A, Class D and Class E drugs as well as possession of a firearm. The case is currently pending in the Ayer District Court. Despite being viewed as a big case, not all major Massachusetts drug dealers will serve jail time. Perhaps the same will be true for this defendant.

Anytime someone makes threats with a firearm in Massachusetts the district attorney will charge that person with everything under the sun. Take for instance the case of a Haverhill man who Monday afternoon got into an argument with a couple of people. As the dispute heightened the man, Eliezer Cruz brandished a firearm and fired a couple of shots into the air. He fled the scene only to be apprehended later that day by local police. Cruz has been charged with several gun and firearm related charges examined below. Continue reading →

Today’s Lawrence Eagle Tribune has an article about two Lawrence men who were trying to melt a gun in a microwave at a local hotel. Socorro Vargas-Martinez and Hector Perez were renting a room at the hotel in which there was an explosion. Investigating officers determined that the explosion originated from within the microwave as the gun was being cooked. The firearm had an obliterated serial number and it is theorized that perhaps the two were trying to melt that number off of the weapon. Charges were filed against both for malicious destruction to property over $250 and possession of a firearm with an obliterated serial number. This post looks at what happens in Massachusetts when you obliterate the serial number on a firearm.Continue reading →

Today’s Portland Press Herald reports that two Massachusetts residents have been apprehended in Maine and will be brought back to Falmouth to face felony charges. Leah Wiinikainen and David Byron were allegedly involved in a shooting over the weekend. Details of the Massachusetts case have not been released however Byron has been charged with assault with intent to murder, assault and battery by means of a dangerous weapon, unlawful possession of a firearm and more. Wiinikainen was charged with being an accessory after the fact. This post examines the crime of accessory after the fact, when it is prosecuted and some defenses to the charge. Continue reading →

The Brockton Enterprise reported today that authorities have charged an unidentified man with possession of a shotgun. The man threatened suicide and the police were called to the scene. The police ultimately entered the man’s home and found firearms and ammunition. It was then determined that the man did not have an FID card. This article examines the consequences of unlawful firearm possession in Massachusetts. Continue reading →

Some people argue that the most onerous aspect of the Massachusetts restraining order statute is the requirement that firearms be surrendered. Massachusetts General Laws Chapter 209A Section 3B states that once a restraining order issues the defendant must immediately surrender all firearms. The law also requires the defendant to surrender all firearm licenses. Those licenses are automatically suspended as well. The defendant is notified of this consequence by the judge orally and in writing. The weapons are to be surrendered to the licensing authority where the defendant lives. Alternatively, the officer who serves the defendant with the 209A Order can take possession of the firearms at the time of service. Continue reading →

The Massachusetts joint venture laws are perhaps the most confusing for jurors to appreciate and understand. A joint venturer is someone who aids or assists in the commission of a crime. This is the person or people who help the principle do the actual act. Helping someone escape or acting as a lookout can also be acts that impart responsibility as a joint venturer. It is the obligation of the district attorney to prove beyond a reasonable doubt that the joint venturer had the same intent as the principle; that he or she intended that the crime be committed. Mere knowledge that a crime is being committed or mere presence at the crime scene is not enough to satisfy the prosecution’s burden of establishing a joint venture. All of that is understandable but here is where the law becomes problematic. A jury can infer the mental state of the joint venturer based the circumstances of the case. So what does the district attorney do in cases where many people are caught and present at a crime scene? They charge them all with the crimes and let the jury make the determination as to each person’s intent. This is completely unfair, disingenuous and downright dangerous. The following recent Brockton cocaine trafficking arrest demonstrates my concerns.

A Methuen, Massachusetts man has been charged with two firearm offenses in the Lawrence District Court following a brief investigation. According to a report in the Lawrence Eagle Tribune, Jad Ali Mokdad has been charged with having an unsecured firearm and possession of a high capacity feeding device. Both cases are pending in the Lawrence District Court. Apparently Mokdad bought a high capacity gun not too long ago. Mokdad’s father called the store that sold the defendant the gun and asked about getting a silencer and about modifying the weapon to feed it more ammunition. The gun store owner called federal authorities to report the activity. As a result Mokdad was arrested.

The use or possession of silencers in Massachusetts is a felony pursuant to Massachusetts General Laws Chapter 269 Section 10A. There is a potential five-year state prison sentence for anyone convicted of this crime. Possession of a large capacity feeding device is a felony as well. This act is prohibited by G.L. c. 269 Sec. 10(m). Perhaps, at least in the context of this case, the most serious crime with which Mokdad has been charged is failing to properly store the firearm in a locked container “so as to render the weapon inoperable by any person other than the owner”. In cases where this law is violated and a person under the age of eighteen can access the gun the accused faces a one-year minimum sentence. This law, G.L. c. 140 Sec. 131L is routinely charged by Massachusetts prosecutors when law enforcement officials legally enter a home and see, either in plain view or pursuant to a search warrant, a firearm not properly locked.

So what is going to happen to Mokdad? A lot depends on how the police got into his home and located the weapons. I would assume they had a search warrant. However the grounds for obtaining one are not articulated in this article. Mokdad’s father’s request to the gun store about getting the sought after devices should not in and of itself permit the police to get a search warrant. There must be more than that, particularly if the warrant targeted Mokdad and not his father. I can certainly foresee circumstances where a motion to suppress or a motion to dismiss might be filed by the defense in this case.

There is something else that might concern the defendant’s criminal lawyer. Assuming there was a search conducted with a warrant, did Mokdad’s Middle Eastern descent factor into the application affidavit. If so, on what basis was this a concern of the police? Keep in mind, Mokdad is scheduled to graduate from college with a degree in finance in just three months. There is no suggestion that he has any criminal history and there is no evidence of an intent to commit a crime with these weapons.

A lengthy investigation into Revere Blood gang activities led to the arrest of fifteen men from various parts of Massachusetts including Revere, Lynn and New Bedford. It is alleged that various gang members were involved in gun and drug sales in Suffolk County and Essex County. Nine of the defendants have been charged with Federal Drug Crimes. The remaining six have been charged in state courts in Boston and Salem, Massachusetts. The charges for each vary and include Trafficking Cocaine, Trafficking Heroin, Firearms Charges and Counterfeit Drugs. Many of the accused have prior drug convictions. Conspiracy is another charge that many of the defendants face.

While the article is not clear as to what charges each defendant faces I imagine that the charges in Federal Court are more severe than those filed in state court. The combination of drugs and guns as the basis for a criminal charge in Federal Court can be devastating. For example, 18 U.S.C. Section 924(c) mandates a consecutive sentence if a firearm is used in connection with a drug trafficking case. This law requires someone convicted of the offenses to first serve jail time on the drug case and then to serve time on the gun charge. The minimum mandatory sentence on such a case is five years from and after the drug charge and up to thirty years. The sentence increases in accordance with the type of firearm that was possessed. Possessing the gun as opposed to brandishing or actually shooting the gun also effect the length of sentence. This law is much more severe than Massachusetts state laws prohibiting the same conduct. As a Massachusetts Criminal Lawyer I imagine that the cases against the people charged in federal court carry those sentence enhancements.

It is difficult to assess possible defenses for the accused in these cases due to the lack of detail in the article. Factors that trigger the defenses include the defendant’s actual role in the criminal enterprise; i.e. was this someone who was caught selling drugs and guns or simply someone who was at the homes that were searched when the warrants were executed. The quantity of drugs found on an individual often guides defenses. For instance, someone with a history of drug possession convictions or with a documented drug abuse history might be able to claim possession rather than an intent to sell drugs if the quantity in his or her possession is consistent with their drug habits. The presence of Drug Distribution Paraphernalia factors into the analysis of the defendant’s intent as does the presence of absence of drug ingestion devices.

Tyrell Berberena of Malden, Massachusetts has been arrested and charged with Possession of a High Capacity Firearm and Armed Assault With the Intent to Commit Murder following a daytime shooting in Malden yesterday. One witness to the event stated that he saw a group of three youths on Eastern Avenue near the parking lot of a Chinese restaurant. The victim arrived on a bicycle. One of the members of the group, wearing a black hooded sweatshirt pulled out a gun and shot the victim. Four or five shots were fired in all. The shooter casually walked away from the scene. The others fled. The victim was taken to a local hospital. His condition has not yet been released. Berberena and the victim knew one another. No motive for the shooting has been disclosed yet. This case is pending in the Malden District Court but will be prosecuted in the Middlesex Superior Court in Woburn.

The crime of Armed Assault With Intent to Murder in Massachusetts is defined by Massachusetts General Laws Chapter 265 Section 18. The law requires the district attorney to prove 10, that the defendant was armed with a dangerous weapon, 2) that the accused assaulted someone and 3) that the defendant had the intent to cause death to the victim. Malice coupled with a specific intent to kill must be proved beyond a reasonable doubt in order to convict for this crime. A lesser offense, and one that is typically easier for the prosecutor to prove is assault with the intent to kill. Anytime someone gets shot in Massachusetts he faces the charge or Armed Assault With the Intent to Kill. This crime is a felony and is punishable by up to twenty years in state prison in Massachusetts.

The defenses to this crime are countless. Obviously a theory of self-defense can be employed in those cases where the facts so warrant. Additionally, since this is a specific intent crime alcohol or drug intoxication can negate aspects of the element of intent necessary to sustain a conviction. In this particular case Berberena is going to have to overcome eyewitness accounts if he intends to go to trial and secure an acquittal. This is sometimes difficult in that uninvolved witnesses’ credibility is difficult to challenge. They rarely have a motive to provide testimony other than what they actually observed. On the other hand, it is very unlikely that these people saw more than the event itself. They probably did not see what precipitated the shooting since there was no reason to focus on the group prior to the shooting. This fact might leave their observations somewhat impeachable. Regardless, Shooting Cases in Massachusetts can be extremely difficult to defend especially where the shooting was observed by a neutral party.